Baidyanath Mishra Vs. State of Orissa and ors. - Court Judgment

Excerpt:
service - compensation - adverse entries were made against petitioner - petitioner had suffered loss in promotion of his service - petitioner approached to tribunal for compensation on ground that if promotion was considered without taking into consideration adverse entries he will get more salary - dismissed - hence present petition - held, only after retirement of petitioner, adverse entries of petitioner have been fully expunged - on adverse entries being expunged, which was cause of suppression of petitioner in matter of promotion, case of petitioner has to be reconsidered afresh - deprivation of legitimate claim on a wrong basis should not be sealed on account of retirement of government servant and as such, even though petitioner does not enjoy status any further, financial benefits of service in promoted post can only be given to him - apart from that petitioner has not proved anything with regard to action of state as contumacious - therefore, claim of petitioner relating to interest on delayed payment of arrears dues and compensation has been rejected by tribunal - petition dismissed accordingly - motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - deprivation of legitimate claim on a wrong basis should not be sealed on account of retirement of a government servant and as such, even though the petitioner does not enjoy the status any further, the financial benefits of service in the promoted post can only be given to him. 6. as it appears, there was a delay in payment of the salary to the petitioner and the same was on account of pendency of dispute as well as in working out the orders of the courts/tribunal, which was unintentional. however, considering the submissions made by the learned counsel for the petitioner and learned government advocate for the state as well as after going through both the impugned orders passed in the original application and in the review application, we are not inclined to interfere with the matter.n. prusty, j.1. in this writ petition, the petitioner has challenged the order dated 17.06.1996 passed by the orissa administrative tribunal, bhubaneswar (hereinafter referred to as 'the tribunal') in original application no. 2161 of 1995 and also the order dated 09.12.1998 passed in review petition no. 24 of 1996 confirming the above order dated 17.06.1996 passed in the original application, in rejecting the petitioner's claim for special pay attached to the post of o.a.s. class-i senior branch (deputy secretary) super time senior branch (joint secretary) along with interest @ 18 % per annum on delayed payment of arrear, arrear dues relating to commuted value of pension along with interest @ 18 % per annum and compensation of rs. 3,00,000/- for harassment and allowing the prayer for payment of interest for the delayed payment of d.c.r.g., if the delay is unreasonable.2. even though no counter affidavit has been filed by the state in this case, on a detailed discussion relating to the facts and merits of the case, learned tribunal disposed of the o.a. vide order under annexure-8 with the following directions:8. xxx xxx xxx accordingly, i direct that on the adverse entries being expunged, case of applicant at different stages may be taken into consideration afresh if they have not been so considered, while giving him promotion by implementation of the order at different stages. cause of action for fresh consideration arises after the adverse entries were expunged. if at the time of superannuating the adverse entries as existing were not considered and case of applicant was considered as if he had no adverse entries no further action is necessary though the communication of expunging adverse entries was delayed. either the case of the applicant shall be considered afresh or in case has been properly considered without taking into consideration the adverse entries for giving him promotion the facts shall be communicated to the applicant within six months from the date of receipt of a copy of this order. if the applicant is given further promotion, financial benefits on the said basis shall be given to him.9. special pay is not a right. when applicant was promoted to the cadre of o.a.s. class-i (jr. branch) he ought to have made a claim for the special pay. if the claim would not have been entertained or would not have been attended to, he would have approached the tribunal within the period of limitation as provided under the act. this claim is rejected on that ground also. same is the fact of special pay in the higher post. accordingly, both the claims are rejected on that ground.10. there is absolutely no justification for not finalizing the pension to allow the applicant to draw provisional pension only. there does not appear to be any justification for withholding of the gratuity also. if the determination of the gratuity would depend upon the finalization of pension, the reason for withholding the gratuity as claimed shall be intimated to the applicant within three months from the date of receipt of a copy of this order. either gratuity will be paid or reason for withholding the gratuity shall be communicated to the applicant within the period of three months.11. delayed payment of gratuity bears interest as provided in the statute. it goes without saying that applicant shall be entitled to the statutory interest when the same is paid in full for the period of delay if delay is unreasonable.12. i direct the respondents to work out this order within the time limit fixed failing which it shall be treated to be contumacious conduct unless reason for delay is intimated to the applicant if this order cannot be complied with.3. the petitioner filed m.p. (i.p) no. 24 of 1996 for review of the above order-dated 17.06.1996 and to grant relief as sought for therein. considering the submissions made by the learned counsel for both the parties and on perusal of the order dated 17.06.1996 passed in o.a. no. 2161 of 1995, learned tribunal dismissed the said review petition. hence the present writ petition.4. in this writ petition, the petitioner has only reiterated the facts stated by him in the original application. the original application was filed in the year 1995 i.e., after eight years of retirement of the petitioner claiming for payment of 18% interest on arrear salary of rs. 24, 656/- from august, 1956 to august 1980 paid on 28.09.1994, interest at the same rate of rs. 23, 756/- paid on 20.07.1995, special pay along with 18 % interest, commutation of pension, arrear pension (provisional), death-cum-retirement gratuity, encashment of leave salary and arrear of provisional pension along with 18% till the date of disbursement and further prayed for a compensation of rs. 3,00,000/- for his sufferings during his service period from the year 1970. the petitioner, who joined as sub-deputy collector in august, 1955 was confirmed in 1961 even though he was to be confirmed in april, 1958. since he was superseded in august 1962, he approached this court in o.j.c. no. 368 of 1970, which was disposed of on 02.01.1974 directing the state government to consider his case relating to supersession. considering his case the state government found that the petitioner was not suitable for promotion. thereafter, again the petitioner filed, o.j.c. no. 768 of 1975 for promoting him when his immediate junior was promoted on 17.08.1962. by order dated 28.07.1977 direction was given by this court to the state government for reconsideration of the case of the petitioner in comparison with the records of his junior who had been promoted. the petitioner also filed two writ petitions i.e. o.j.c. nos. 414 of 1977 and 1208 of 1979 since he could not get the deserving promotion on account of entries made in his confidential character roll. on 07.05.1985 both the cases were disposed of directing the state government to consider the matter afresh keeping in view the fact of delay in communication of the adverse remarks. on the basis of such direction, some of the adverse remarks were expunged and thereafter he was promoted to o.a.s. class-ii with effect from 21.08.1965 by order of the government dated 23.05.1987 against the recruitment year 1964 and was promoted to o.a.s.-i (jr. branch) with effect from 31.03.1980 by order dated 31.10.1989. on the same day, he was also promoted to o.a.s. class-i (senior branch) on ad hoc basis and was posted as deputy secretary and retired on the very same day. adverse remarks for the years 1956-57 to 1959-60 and from 01.04.1961 to 31.07.1961 were expunged in full by an order communicated vide letter-dated 24.02.1991, which is after his superannuation. as such, adverse remarks being expunged, his case for promotion was considered. so far as claim of the petitioner relating to special pay of rs. 150/- per month is concerned, the same was rejected since the special pay is attached to the post and the petitioner had not discharged his duties in the post to which special pay is attached. the other officers who were so-called junior to the petitioner had drawn the special pay since they were performing their duties in the post to which the special pay is attached. the basis of the claims of the petitioner relates to special pay as o.a.s.-i (junior branch), deputy secretary and joint secretary, interest on account of delay in payment of the arrear dues, release of gratuity and compensation for harassment were discussed in detail in the impugned judgment passed in the original application.5. learned tribunal, taking into consideration all the available materials has observed that only after retirement of the petitioner, the adverse entries of the petitioner in the confidential character roll have been fully expunged. on the adverse entries being expunged, which was the cause of supersession of the petitioner in the matter of promotion, the case of the petitioner has to be reconsidered afresh. deprivation of legitimate claim on a wrong basis should not be sealed on account of retirement of a government servant and as such, even though the petitioner does not enjoy the status any further, the financial benefits of service in the promoted post can only be given to him. further the learned tribunal has observed that the petitioner has not proved anything with regard to the action of the state as contumacious. accordingly, the claim of the petitioner relating to interest on delayed payment of the arrear dues and compensation has been rejected by the tribunal.6. as it appears, there was a delay in payment of the salary to the petitioner and the same was on account of pendency of dispute as well as in working out the orders of the courts/tribunal, which was unintentional. the petitioner retired from service with effect from 31.10.1989, but he filed the original application in october 1995, which is long after the orders of the court were implemented and payments were made. there was also no delay on the part of the state in implementation of the orders of this court passed in different writ petitions and accordingly in making the payment of the outstanding dues immediately after approval and required sanction at different stages. the petitioner has also not furnished any material to indicate that the opposite party/state was negligent in timely implementation of the orders. the period of limitation is also a factor for making any claim for interest and compensation, which has also to be taken into consideration. the belated claim of the petitioner cannot be entertained by any court. the service rules also do not provide for payment of interest and compensation for delayed payment of salary etc. except in payment of d.c.r.g. as such, no order can be passed by a court for payment of interest and compensation, if it is not a condition of service. accordingly the claim of the petitioner relating to interest on delayed payment of arrears and compensation except on d.c.r.g., as per rules, is liable to be rejected.7. as it appears, the state government has not approached this court by way of filing any writ petition challenging the order passed by the tribunal in the original application. however, considering the submissions made by the learned counsel for the petitioner and learned government advocate for the state as well as after going through both the impugned orders passed in the original application and in the review application, we are not inclined to interfere with the matter.8. the writ petition is accordingly dismissed, as the same is devoid of any merit. there would be no order as to costs.a.k. ganguly, c.j.i agree.